JAMAICA

Children (Guardianship and Custody) Act, Section 18: Welfare of the child as the paramount consideration

Case Summary:

Background:

The complainant father sought to have a previous consent order, which granted the defendant mother unrestricted access to their child on four weekends per month as well as two weeks in the summer and one week in the Christmas period, varied and substituted with an order for supervised access. The complainant submitted that over the three-year period since the court order the child’s access to his mother had been detrimental to his physical, emotional and spiritual wellbeing and development, alleging in particular that the defendant’s home environment represented a danger to the child because he did not take his required medication when with his mother and was continuously exposed to the smoking of marijuana during his visits. The child had attention deficit disorder and occasionally experienced severe mood swings during which he presented a danger to himself and to his friends, evidenced by the fact that he had been suspended from school a number of times over the past three years for violent conduct and use of foul language.

Issue and resolution:

Custody and access, best interests of the child. The Court decided that it had the power to revise the consent order and granted the complainant’s application for supervised access as that was in the best interests of the child.

Court reasoning:

The Court held that a consent order may be varied if there is a material change in the position of one of the parties: indeed, the power to vary orders should be considered particularly crucial in matters relating to children, where the primary consideration is always the welfare of the child and so orders for custody and access can never be final. Even the parties cannot oust the jurisdiction of the court in such matters.

The Court noted that it is normally in the child’s best interest to have access to both parents. However, access is the right of the child and not of the parent, and in exceptional cases a court may completely cut off access to a non-custodial parent where the interests of the child demand it. Supervised access may be ordered when there are concerns for the child's well-being if access is not supervised, and the Court found that this might be appropriate in situations where the parent has limited parenting skills or where the environment in which access would otherwise be granted may be prejudicial to the best interests of the child.

Excerpts citing CRC and other relevant human rights instruments:

"It is trite law that access as between a parent and a child is properly to be regarded as the right of the child, and that it is normally in the best interests of the child that he have access to both parents. The right of a child to have access to both parents is reinforced by the provisions of Article 9 of the United Nations Convention on the Rights of the Child, a convention to which Jamaica is a signatory. The article provides that: State Parties shall ensure that a child shall not be separated from his or her parents against their will except when competent authorities subject to judicial review determine in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case, such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence."

CRIN Comments:

CRIN believes this decision is consistent with the CRC. It is crucial that decisions concerning custody and access are taken with a view to the best interests of the child, and not the rights or interests of the parents. The best interests of the child are never static, and so courts should be able to vary orders to account for the complexity and volatility of family life.

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